Mediators now have something new to mention in their opening statements around the mediation table. The New York Times reported earlier this month that a new study suggests that plaintiffs and defendants often make the wrong decision in not settling at the mediation table ("Study Finds Settling is Better Than Going to Trial"). While the article acknowledges that 80-92% of all civil suits settle, those that went to trial frequently were unhappy with the results.

In 24% of cases, defendants fared worse in trial by the tune of $1.1 million. Plaintiffs got less than expected 61% of the time, missing out on an average of $43,000.

The author of the studies suggested there was an increase in parties making the decision to go to trial, which they implied was due to poor lawyer decisions/explanations or client misunderstanding.

The NYT article quotes only one lawyer and acknowledged that some lawyers are distrustful of statistics as they apply to any particular case.

Earlier this year, I spoke with another lawyer at the STLA regarding how courts handle nursing home arbitration clauses based upon who signs the admission agreement. The most difficult case to enforce is, at the same time, the most common situation: an adult child of the Resident signs the agreement without legal authority. Long term care facilities, at the corporate level, have almost all moved towards some sort of ADR in their admission agreements but the implementation at the admissions level has been their Achilles heel. Recognizing that a number of admissions personnel are really marketing people, the interest is often to admit the person and not so much worry about the finer print details. The case of Matthew Thornton v. Allenbrooke Nursing and Rehabilitation Center, LLC and Beverly Enterprises Tennessee, Inc. may be an example of those shortcomings.

The arbitration clause itself appears solid, although its placement on page 29 of a 34-page admission agreement is less than ideal. Some of the details: (1) invokes the FAA by having parties acknowledge and agree that the Admission Agreement evidences a transaction in interstate commerce, (2) uses broad "arising out of, or in connection with or relating to" language, (3) sets out that damages are determined by state or federal law, (4) severability clause, and (5) thirty day rescission period.

Great. Now the mistakes.

Resident was competent. Line for her to sign was left blank. Daughter was permitted to sign in the wrong places. Daughter testified she told the facility she was not the power of attorney. No one ever asked the Resident to sign.

As the trial court noted, "It would seem to the court that the facility and/or its administrator would have some added responsibility, once it is made known that the person with whom they are delaing has no legal authorit, that they make sure that the person who signs it is, in fact, either a lawful agent or that there is some incapacity before you can carry the inquiry further." The appellate court nailed the point home further, "With all due respect and in candid response during oral argument, counsel for the nursing home asserts that the process that was followed in this case was business as usual, if you will, and asserts that the way this was done was the way that they have always done it at this particular nursing home, not only by this particular nursing home, but by others as well; and not only that, by nursing homes here and in other jurisdictions as well."

The nursing home argued that it detrimentally relied on the Daughter's signature. The court could not find, however, a detriment: "At best, the nursing home can only point to detriment, if you will, at being the cost and expense of litigating the issue of whether or not this case should go to litigation. Quite frankly, that is not this Court's understanding of the term 'detrimental reliance' in this context."

Other workaround theories such as actual agency, apparent agency/authority, ratification (Resident did not have "full knowledge" of contents of Agreement) and mutual assent failed.

Over the last few years, there had been a noticeable tide against enforcement of Proposals for Settlement in appellate court decisions. That string of cases was leading the courts to discover more and more ambiguities which made it sound as if any release attached to a Proposal would risk rendering the Proposal worthless. We strongly caution against the use of releases attached to Proposals. That said, the Second District breathes some life back into Proposals for Settlements with releases in Carey-All Transport, Inc. v. Frances Marie Newby.

In this auto accident case, the plaintiff sued the defendant driver and his employer. The driver was later dismissed, leaving only the defendant employer facing a vicarious liability claim. Employer served a Proposal for Settlement for $125,000 and beat that number at trial with a $75k verdict. Trial court held that the defendant's Proposal for Settlement was not valid because the general release was ambiguous and it required the plaintiff to give up rights "extrinsic" to litigation. The Panel (Villanti, Fulmer and Canady) reversed, finding the Proposal and attached release were enforceable.

The Proposal required, as a non-monetary term, the execution of an attached general release and specifically stated, "this proposal is attempting to resolve all of the claims for affirmative relief made by the plaintiff... and all claims for affirmative relief which could have been raised as compulsory claims to this action." The attached release had the "typical" language, defining the defendant employer as including "its predecessors, successors, ... agents, servants, employees and former employees."

In an effort to avoid the Proposal, the Plaintiff claimed that the Proposal failed to differentiate between the employer and defendant driver. The Court held this was not a joint proposal for settlement since the driver had previously been dismissed and was not, at any time relevant, a party. Moreover, since the claim against the defendant-employer was one of vicarious liability, releasing "former employees" was intrinsic, not extrinsic, to the claim.

The Plaintiff also claimed it was ambiguous as to whether the Proposal/release was extinguishing the claim against the driver, in the event the Plaintiff wanted to re-commence litigation. The court held that the employer did not need to specifically name the driver in the Proposal/release and that it was reasonably clear that "former employees" meant the driver. As to whether there was an ambiguity, the court found that the release was "sufficiently clear and definite to allow the offeree [an opportunity] to make an informed decision without clarification."

In what may be the key phrase of the case, the Panel wrote: "...parties should not nit-pick the validity of a proposal for settlement based on allegations of ambiguity unless the asserted ambiguity could reasonably affect the offeree's decision on whether to accept the proposal for settlement."

In what may reveal itself to be a landmark discovery-related case, the Fourth District (per curiam, Farmer dissenting) upheld a protective order which prevented plaintiff’s counsel from sharing confidential trade-secret related information with “at least 20 other law firms” who were interested in the material despite not having any relevant pending litigation. The case is Cordis Corporation and Johnson & Johnson of New Jersey v. Sean O’Shea.

The underlying dispute involves a medical products liability case over the CYPHER drug-eluting stent implant. The plaintiff requested contracts, manufacturing information, marketing information, sales force training/education and other information. The parties entered into an agreed protective order on “trade secrets and confidentiality.”

This appeal arose since plaintiff’s counsel sought a disputed order which would include a “sharing provision” to allow counsel to provide this information to other lawyers who were interested but who were not involved in “collateral litigation.” Presumably, although the decision does not mention it, counsel was involved in plaintiff lawyer associations which routinely share information. Counsel brought this to the court’s attention and said that the lawyers who would get the “shared” information would agree to abide by the confidentiality terms.

The defendant contended that it was in a highly competitive market and the innovations were the core of its business. Arguably, there is a “cat out of the bag” argument to be made here but, as we see it from the sidelines, the defendant’s opposition to broad disclosure is more of a method to prevent other plaintiff lawyers from having easy access to information which might fuel lawsuits – or, because of the cooperative nature of plaintiff lawyer association networks, might fuel class action cases against the defendant. Both the majority and dissenting opinion touch on this issue, but we see a difference between a “trade secret” and information which (perhaps correctly) is “confidential” since it is listed on the internal documents of a private company.

The Court noted that a party seeking confidential information must show a need for that information which outweighs the opposing party’s need to keep the information secret. The Court then discussed some persuasive federal court cases which granted or, conversely, restricted dissemination of comparable discovery to collateral litigants.

The Court voiced concern that allowing these sharing provisions might provide a mechanism for lawyers in other jurisdictions to use Florida courts to get information which their home jurisdiction’s narrower discovery rules might not allow.

Getting back on track, the Fourth DCA noted that discovery is for the preparation of trial or reaching a settlement. While broad sharing might encourage settlement and discourage repeated discovery, the Court held that the plaintiff did not show a need to broadly share the confidential information with counsel not of record and not involved in collateral litigation.

This is a fascinating issue and the majority opinion did test out different theories and considerations. That said, the dissent did raise some good points taking the majority to task for not having enough information to rule.

We do question why the Court did not stay on target with the focal issue that the parties initially put the label “confidential” on the materials. Thereafter, to then spread that information to others (whoever they may be) for reasons that are not squarely related to this particular case seems to go against the original, agreed concept that these materials were “confidential.” It also seems contrary to the 2007 Fourth DCA cases cited as authority on the standard to overcome confidentiality. Whether the Court made the right or wrong decision remains to be seen but – again from the sidelines – some linear connecting of the dots might have efficiently reached the same conclusion.

In the procedural unconscionability analysis, it has become fairly clear that arbitration clauses cannot be hidden in a maze of small text font and, to the contrary, such clauses are often best situated with an emphasized typeface directly above the signature line. That said, many agreements call for reference to the AAA or some other arbitration forum rules and parties avoiding arbitration often claim that the details of the forum rules were unaccessable to them or were not explained.

We came across this concurring opinion in Bridgett Hill et al. v. NHC Healthcare/Nashville, LLC, where Tennessee Judge Frank G. Clement, Jr. agreed that an arbitration clause was unenforceable for various reasons but then wrote the following:

"I do not place any significance on the fact that the nursing home did not provide a thorough explanation of the nuances of the arbitration provision because no explanation was requested. Moreover, I do not place any significance on the fact that the agreement contained no explanation of binding arbitratin, nor any language that would encourage the patient to ask questions about the process."

While we would tend to agree that a "take it or leave it" agreement may become more acceptable, and less adhesive, if it contained full details and explanations, it is clearly not a standard of contract law that terms (even important ones) need to be spelled out in great detail, down to every definition. Indeed, even a verbal explanation can be more of a burden than a benefit, as a Florida federal court and the 7th Circuit noted in Rivera v. AT&T.

As a side note, the issue in the Hill decision was that the arbitration agreement was presented "as is," had no recission clause, and lead to a circumstance where the "patient" could choose between receiving medical service or waiving a right to jury trial. While we are not Tennessee lawyers, it appears that state is developing a precedent that arbitration clauses in health care contracts may be deemed unenforceable if it is an adhesion contract AND the arbitration agreement somehow favors the doctor (which would roughly be the same as requiring both procedural and substantive unconscionability to void arbitration). We believe doctors/physicians and other health care providers can include arbitration or jury waivers in their patient contracts -- even if they are not optional -- but the arbitration forum must be free of any bias or favoratism. Here, it appears, the claimant would have to pay "exorbitant fees in advance."

It has been a few months since we've touched upon the issue of a party waiving litigation by inadvertently participating in litigation. As a brief backdrop, federal law requires both an inconsistent act as well as prejudice to waive arbitration whereas Florida law only requires the (ill-defined) inconsistent act. The grand-daddy case in Florida is Raymond James Financial Services v. Saldukas but there have been waiver analysis cases since then that (surprisingly) don't bother to cite Saldukas.

In Olson Electric Co., Inc. v. The Winter Park Redevelopment Agency, Olson filed suit and the defendant filed an Answer as well as propounded discovery. One affirmative defense referenced that the matter should be in arbitration. Later, the defendant sought to seek arbitration but the trial court held it was waived. Using the "totality of the circumstances" test, the Fifth District panel (Palmer, Orfinger and Lawson) held that the defendant waived by issuing discovery which was inconsistent with the claim asserted in the Answer that arbitration was the proper forum.

We take the position that this is the wrong analysis. Discovery is not necessarily inconsistent because it is not record activity and it is entirely consistent with what the parties are eventually going to do in arbitration. Taking years of depositions and discovery MAY change that analysis. More accurately, filing an Answer which denies the claims is the triggering event. Indeed, if one studies waiver cases, filing an Answer is always present. It is a clear bright line rule -- if you file an Answer with the word "denied" then that means you've waived. To support this position, Florida courts hold that Motions to Dismiss aren't waiver.

Again, in our eyes, there's a conflict between the Third District and the Second District (and now the Fifth, arguably). See the prior discussions about Estate of Orlanis v. Regents Park for greater detail. That case, which is the vehicle for this conflict, sits patiently before the Florida Supreme Court. Watch it here.

In the Florida Supreme Court's landmark Seifert case, the court found there was an insufficient nexus between the tort allegations and the subject contract which held the arbitration provision. That "nexus" standard has been one which has remained undefined and confusing. Indeed, it appears open enough that intermediate appellate courts have been using it to avoid or enforce arbitration -- apparently simply as a tool of equity. This decision may be one of those. At face value, for the moment, the opinion itself seems only interesting to the parties. But it is an example of (1) application of the "nexus" standard and (2) how to enforce the FAA under theories of interstate commerce.

Dr. Robert Hynes and the Brevard Orthopedic Spine and Pain Clinic contracted with Health First, Inc. in order to provide medical services under a Participating Group Agreement. That contract included a broad "arising from or relating to" clause demanding arbitration. Health First responded to the Complaint with a Motion to Compel Arbitration. They claimed (1) the FAA controlled because of interstate commerce and (2) all claims arose or was related to the Agreement. Not so, said the Court.

The court in Health First Inc et al. v. Richard Hynes, M.D. et al held that only some of the claims were arising from or relating to the Agreement for fact specific grounds. Curiously, the Panel (Palmer, Sawaya, and Cohen) found that references to the Agreement were merely "examples" of the claims and not the substance or the entirity of the claims.

Also interesting, Health First claimed that the FAA applied since the Agreement related to Medicare services but counsel never submitted any evidence. The Court was seemingly willing to enforce the federal law but claimed there was no evidence to support it. That would not likely have changed the outcome. But the lesson is that lawyers need to produce evidence in order to seek enforcement under the FAA.

Parties to lawsuits frequently try to settle directly with one another and "bypass" their own counsel. Sometimes it is an effort to reduce attorney fees -- the idea being that you can cut to the chase if you get the lawyers out of the way. But, this can happen even at mediation, when the parties have immediate access to their clients. Other times it is simply a "heat of the moment" situation where the parties meet without lawyers, discuss the case, and want to get the matter settled right then and there. The case of Wasfi Makar v. Kamil Gowni, George Mansour, et al. should serve as a warning against such practices.

From the opinion, it is hard to glean exactly what the underlying dispute was about since the court was more focused on how much litigation surrounded settlement. The Fifth DCA (Lawson, Griffin, Monaco) pointed out that this is the second appeal in the case relating to settlement -- not the actual dispute. After suit arose, the plaintiff and individual defendants negotiated a settlement without counsel -- as the panel wrote, "Not surprisingly, the agreement failed to thoroughly address all potential issues needed to bring the matter to a successful negotiated resolution, as would probably have been the case had the parties relied upon the experience of their retained counsel."

The central question was whether the release of the individual defendants (alleged active tortfeasors) released the corporate defendants who were alleged to be vicariously liable. As the Court pointed out, the settlement agreement was "at best ambiguous" on this point but the overall tenor of the opinion suggested that the Panel did not believe that to be the case. More specifically, vicarious liability claims are separate from claims against active tortfeasors and, to settle both, you need to say so. Simply settling with the individual/active tortfeasors will not release the vicariously liable defendants.

A frequent civil litigation tool is the Proposal for Settlement (formerly an "Offer of Judgment") which allows one party to make a formal settlement offer which, if not accepted in a month, can lead to exposure to fees if the Proposal is not ultimately beaten by +/- 25%. This, of course, is a method of alternative dispute resolution. Florida law, however, has clouded this otherwise sunny means to resolve disputes since there is both a Rule of Civil Procedure AND a Florida Statute to be met. Case law has interpreted that even the hint of vagueness will terminate a Proposal. Thus, if a party serves a strategic Proposal for Settlement going into trial, that party wants to make sure the Proposal is valid. But statistics suggest that about one quarter of the challenged Proposals actually survive an appeal.

In "Building a Better Proposal for Settlement," the article sets out a proposed framework for a Proposal for Settlement which complies with both the Rule and the Statute as well as meets the recent case law standards. It appears this month in the Florida Defense Lawyers Association's publication, the Trial Advocate Quarterly. Or you can download it by clicking on "Proposal for Settlement" on the right column of this page under "ADR Materials."

We're traditionally quite comfortable straying a bit from the topics of ADR and have braved issues like 57.105 and Proposals for Settlement since they are, indeed, alternative forms of relief. So let's stretch our reach a little further. This post helps the practice of law both in arbitration and litigation. You still need to take depositions in arbitration. Likewise, you still have litigation files on your desk, right? So know the rules, including this potentially critical case.

In Proskauer Rose v. Boca Airport d/b/a Boca Aviation, the parties battled out a legal malpractice claim and took up an issue regarding production of documents used to prepare a deponent. The party-deponent reviewed records with his lawyer in advance of deposition. The documents were selected, highlighted, and summarized by counsel and were helpful to refresh the deponent's memory in advance of deposition.

After the deposition, the questioning-lawyer sought to have the "refreshing" documents produced, arguing they were necessary to be inspected and used for cross-exam under the Florida Evidence Code, 90.613.

The per curiam panel determined that the general rules regarding handing over documents used to refresh a witness' memory while testifying did not apply to documents used BEFORE testimony. A 1985 case confirmed that a trial court could, but was not required, to order production but, here, the documents were privileged and that was not overcome.

Of note, based upon the opinion, I don't readily see any references which might warrant Supreme Court review for direct/express conflict. Not sure this is an issue of great public importance here either. So this case might be the controlling precedent for a while.

A passing note, there are some quality West Palm judges, lawyers, and firms involved in this case: Judge Diana Lewis, Beasley Hauser law firm, Edna Caruso, and Jack Scarola at Searcy Denney.

Exculpatory clauses (or "liability waivers") cannot be in a new home construction contract, says the Fifth District in Sue and Warren Loewe v. Seagate Homes, Inc. Not that people are building new homes these days anyhow. I suspect many of us have these clauses in our construction contracts. This could be a precedent-setting case.

In 2004, the plaintiffs hired the defendant to build a home. A week after moving in, one of the plaintiffs allegedly was struck by an improperly hung closet door. The plaintiffs sued. The court noted that the new house construction contract had both a seller's warranty (good quality; met acceptable professional standards) and an exculpatory clause which released the defendant from, well, every form of civil liability. Trial court said the exculpatory clause was unambiguous and enforceable.

The Fifth District (Evander, Pleus, and Cohen) reversed, noting that the exculpatory clause violated public policy in that "a party cannot contract away its responsibility to comply with a building code when the person with whom the contract is made is one of those whom the code is designed to protect." Of note, the court acknowledged that there was no PROVEN violation of the code but, regardless of whether they can establish that, this clause would absolve that liability and was therefore unenforceable.

Of note, the public policy at issue involves construction practices and standards under Florida Statute section 489.101 regarding regulation for public wellbeing and construction accountability under section 553.781.

Also of note, the clause below must fail because it excuses intentional torts. According to the panel, it is "obviously unenforceable to the extent it attempts to release Seagate of liability for an intentional tort." No other comments about the rest, if those of you who draft contracts want to salvage portions of this liability waiver:

Release. The Buyer hereby acquits, releases, exonerates, and discharges Seller, its officers, directors, owners, employees, their successors, legal representatives and assigns from any amount of damages, including but not limited to medical expense, lost wages, pain and suffering and disability resulting directly or indirectly from bodily injury, personal injury, or property damage, that may be or is caused, suffered or incurred by the Buyer, the Buyer's guests, employees, agents, suppliers, contractors or subcontractors at any time as the result in part or in whole from the construction process, the constructed dwelling or the lot on which it is constructed, the materials and supplies used in or incorporated into the dwelling or the lot on which it is constructed and the components therein. This Release shall apply and be effective regardless of the cause of the injury or damage, including but not limited to negligence, gross negligence, strict liability or the intentional conduct of any of the foregoing releasees

Don't you hate it when you find out that your friends have been out having fun without you? Such is the case with this local West Palm Beach appeal involving colleagues Bard Rockenbach and Robert Saylor before Judge Diana Lewis dealing with procedural arbitration questions. (we kid, of course)

In Sheila Paige v. American Security Insurance Company, the parties went to arbitration and the plaintiff won. She then move the circuit court to confirm the award and enter an award granting fees and costs. The defendant moved to strike plaintiff's motion for fees as untimely. Specifically, in April 2007, the circuit court entered an order confirming the award and reserving on fees and costs. Two months later, the plaintiff filed a motion for fees. Defendant claimed it was too late and that the confirmation of the arbitration award was tantamount to a final judgment.

Not so fast. The Fourth District (Stone, Farmer, and Klein -- nice panel for this case, by the way) noted that Florida Statutes 682.15 (Florida Arbitration Code) says that, "[u]pon the granting of an order comfirming, modifying or correcting an award, judgment or decre shall be entered in conformity therewith..." Florida Rule of Civil Procedure 1.525 days that the motion for fees/costs is due within 30 days after filing the final judgment.

Hence, there is still judicial labor after confirmation of the arbitration award which means there is no final judgment yet. Indeed, the Code sets out that confirmation and final judgment are different legal animals. Rule 1.525 indicates, here, that the order of confirmation "did not trigger the thirty-day cap..."

In an early summer post, we mentioned a May 2008 decision where the Fifth DCA refused to enforce an exculpatory clause / liability waiver for a 5-year old camper. A large number of gyms, camps, and other recreation activities include the consumer signing a waiver. Is it enforceable? Perhaps this Second DCA case -- which voided the YMCA's exculpatory clause -- will be of some interest.

In Elizabeth Anne Murphy v. Young Men's Christian Association of Lake Wales, Inc., a central Florida YMCA required a member to sign an exclupatory clause before using gym equipment. We'll reprint the clause below, but essentially the drafters tried to use "user friendly" language and got burned. In one sentence, the clause suggests that the YMCA will use "reasonable precautions" but, later on, all claims for negligence are waived. See the difference? In one instance, the "reasonable precaution" sentence suggests that YMCA will, indeed, use reasonable precautions -- then and only then will they be off the hook. But, the clause then says all claims are waived, presumably even if reasonable precautions are not used.

Read the clause below and make up your own mind. Quite frankly, it seems splitting hairs but, alas, that is the lesson of these cases. ANY suggestion of the slightest mulitple equivocation or multiple interpretation is going to unwind an exculpatory clause. Indeed, the provision below may be simply too long. That many words leads to the communication of a lot of ideas, some of which can be construed as being in conflict. Bottom line, exculpatory clauses need to be clear. Reference to "reasonable precautions" may be its un-doing. Best to be short and emphasized, right above the signature block.

The 2nd DCA (Canady, Whatley, Salcines) cited an old Third DCA (Miami area) case involving a camp liability waiver. That provision is included below. Quick test, was it enforced?

CLAUSE FROM OLDER CAMP CASE:

"It is further agreed that reasonable precautions will be taken by Camp to assure the safety and good health of said boy/girl but that Camp is not to be held liable in the event of injury, illness or death of said boy/girl, and the undersigned does fully release the Camp and any and all persons concerned therewith, for any such liability."

Enforced? Nope. That clause was "ineffective because it did not explicitly state that the camp would be absolved from liability for injuries resulting from its negligence." Indeed, we again see this "reasonable precaution" language rear its head. Note, all things being equal, if there is a duty and reasonable precautions are undertaken to meet it, a would-be defendant likely would not be found negligent anyhow. That's one of the standards of negligence. So such a "reasonable precautions" release is worthless.

Here's the YMCA clause:

"I am an adult over 18 years of age and wish to participate in Lakes Wales Family YMCA activities. In addition I give my children permission to participate... I understand that even when every reasonable precaution is taken, accidents can sometimes still happen. Therefore, in exchange for the YMCA allowing me to participate in YMCA activities, I understand and expressly acknowledge that I release the Lake Wales YMCA and its staff members from all liability for any injury, loss or damage connected in any way whatsoever to my (or my children's) participation in YMCA activities, whether on or off the YMCA's premises. I understand this release includes any claims based upon negligence, action or inaction of the Lake Wales Family YMCA, its staff, directors, members and guests. I have read and am voluntarily signing this authorization and release."

About a year ago, the First Circuit (federal court) held that General Dynamics' attempt to implement an arbitration program -- distributed to employees by email only -- was not enforceable. Some took this opinion to mean that binding arbitration could not be enforced if simply sent via email; but that wasn't the court's opinion. The method of delivery (email) was fine -- just the wording of that particularly agreement was faulty. Follow the link for a clear discussion and summary of Campbell v. General Dynamics Government Systems Corp.

Fast forward to a few weeks ago, and the 4th District took up a similar issue in Alexander Santos v. General Dynamics Aviation Services Corp. An employee claimed that General Dynamics violated the Florida Civil Rights Act (FCRA) and brought administrative complaints through the Palm Beach County Office of Equal Opportunity (OEO) and the Florida Commission on Human Relations (FCHR). He then filed suit. General Dynamics moved for arbitration, claiming that there was a long-standing Dispute Resolution Policy (DRP) which had been sent to all employees back in 2003. It stated that continued employment alone meant the employee agreed to the mandatory binding arbitration program.

As a practice pointer, General Dynamics moved to compel arbitration and enclosed (1) a mailing list of all employees who received the updated DRP and (2) an affidavit attesting these employees (including the plaintiff) received the DRP. This, by the way, is a consistent, proven method of establishing a valid arbitration agreement when one side has not signed -- much like we see in the amendments to credit card agreements which get served on customers by a mailing or billing insert.

The Fourth District (Polen, Warner, Taylor) confirmed that, under both Florida and federal law, arbitration can be enforced without a signature. Of note, the Third District came to the same conclusion back in 2002 in Integrated Health Services of Green Briar (IHS) v. Lopez-Silvero, but that case was not cited by the Fourth. Here, the Court found a valid and enforceable arbitration agreement because General Dynamics had given "sufficient proof" there had been an agreement.

Practitioner Question: note that in this discrimination case, the claimant first made administrative claims with county and state agencies. Let's presume for a moment the employer-defendant responded. If that's not waiver (and it shouldn't be), can we not also conclude that any participation in any "pre-suit" requirements for a statutory claim (say, Chapter 400 or 766) is also NOT waiver?

It is not uncommon for court opinions to take the time to really single out an attorney, or actions by an attorney, in order to press the court's own point. A lot of times those decisions involve sanctions or intentional behavior. This case, which we pick up from our brethren in Illinois, shows the appellate court taking advantage of (what the court decided was) poor strategy of one party's lawyer in order to avoid having to undo some deficient thinking by a trial judge. Indeed, along the way, the decision never discussed some potentially interesting issues.

In the case of Estate of Joyce Gott v. SSC Odin Operating Company d/b/a Odin Healthcare Center, the dispute centers around an elderly resident's two admissions to the same nursing home -- both times an arbitration agreement was signed, once by her daughter and the second time by the resident. Likely that issue was batted around quite a bit, but none of that made it to this decision. Indeed, also fascinating was an arbitration term that it ONLY applied to claims worth less than $200,000 while, at the same time, it was governed by the FAA. Note, fighting over the FAA can occur in state or federal court but, to be in the latter on diversity grounds, the claim would have to be worth more than $75k but less than $200k. Again, surely there was some effort to avoid arbitration based upon that "under $200k clause" -- but nothing mentioned in our fateful decision.

The trial court's decision was dealt with in two paragraphs. One explaining what the trial court did. The second paragraph said that the appellate court didn't have to review those issues based upon its ruling. Lucky trial court. It had said that these two nursing home admissions were not sufficient to trigger interstate commerce nor the FAA and that, even with the "dual" signatures, it wouldn't apply to this case. As to the interstate commerce issue, rarely have we seen a nursing home case NOT involve interstate commerce. As to the second issue, we'll assume there are some unique Illinois statutes at work but, in Florida, that ruling would make no sense (and it still defies common sense).

The heart of the decision is that the appellate court spends 2 pages on what the defense lawyer did not argue. The court said the defense lawyer waived the argument that public policy might not be able to unwind a private contract. That's odd to claim the lawyer "waived" the argument -- and then have the court set out a half dozen cases showing why that argument likely wouldn't have worked anyhow. How about just saying the argument wouldn't have worked, if raised, because of (whatever) precedent? Next, the court claimed the lawyer "waived" the argument that an anti-arbitration provision in the nursing home statute was NOT a statement of public policy. Again, the court then string-cited a bunch of cases showing that argument may not have worked anyhow. So, that foundation too could have been phrased in a way that doesn't take the position that some lawyer blew it by not raising the issue "in its brief or reply brief or at any time at oral argument." Nice. Perhaps the court should have included the name and phone number of the lawyer's malpractice carrier in the decision too, just to seal its (needless) point.

In the light most favorable to the appellate court, maybe they had some clever idea and interest on how to dodge the statute and public policy...

Ultimately, the state nursing home statute (right to bring claim cannot be waived; right to jury trial cannot be waived) was deemed to be a statement of public policy which could void the arbitration agreement and which could not be preempted by the FAA. While this issue was "properly preserved" by the court's least favorite lawyer in the case, the court nonetheless held that the statute need not specifically reference arbitration clauses for it to apply here. And that's probably true. However we have seen arbitration clauses enforced in Alabama using the federal provision where the state law prohibits them -- perhaps the Illinois lawyers may want to check the precedent for using federal arbitration provisions in an anti-arbitration state. There might be some ideas there.